Those inclined to believe in the probity of high councils, such as
those that disburse a nations health research funds, were driven from complacency in
the fall of 2000 when one of the highest councils, the Supreme
Court of the United States of America, handed the Presidency to the
republican son of a previous republican President.

The republicans had
discarded their most competent candidate, Senator John McCain, who strongly advocated
reform of campaign financing (see above), and selected George Bush, the Governor of Texas.
The democrats selected the Vice-President, Albert Gore. In a time of "unprecedented prosperity" things looked good for Gore, whose 8
year understudy had amply prepared him to assume the highest office in the land. Yet, his
style was somewhat "stiff," and his mentor,
Clinton, had erred in his private life. By pressing for Clintons impeachment on this
matter, the republicans had attempting to cripple the Presidency (and hence the important
role it had to play in a dangerous world) in support of their own political interests.
Bush played the "integrity" card for all it was
worth, and the election became "too close to call."
Everything came to depend on the vote in Florida, whose 25 electoral college votes would
give victory.

In the initial count,
Bush had a slight lead. However, malfunctioning voting machines in certain democratic
counties had rejected large numbers of votes ("undercounts").
The voters in those counties had thus been denied "the equal
protection of the law" that the US Constitutions 14th
Amendment required. Gore appealed to the Supreme Court of Florida, which has final
authority in state matters, requesting a recount in these counties, and called upon Bush
to join him and press for a rapid hand recount of all
rejected votes in Florida, so that "the will of the people"
would become apparent, and the future President would be legitimized. Bush decline to do
this and the matter went to the Supreme Court of the USA.

Meanwhile, the State
Supreme Court, under pressure from the Federal Supreme Court not to "make new law" gave the go-ahead for the recount, which under
existing Florida Law required that the counters manually examine the voting cards to
discern "the clear intent" of the voter. While this
criterion might differ from counter to counter, an individual counter would use the same criterion whether judging an
undercount for Bush or for Gore. So the counting was essentially fair, and could be made
fairer by group evaluation of every undercounted ballot. The Florida Law did not
elaborate, in advance, what would constitute "the clear intent,"
thus, wisely leaving the door open to the unexpected (such as a voter leaving the card
untouched, except for writing,
say, "I vote for George Bush").
In any case, changing that law was a legislative,
not a judicial, task. Furthermore,
all parties knew the rules when the "game" began
and, however imperfect the rules, it was not appropriate to change them when the game was
in progress.

Amazingly, on
Saturday 9th December, the Federal Supreme Court, issued a ruling that the
counting be stopped, on the grounds that it would do "irreparable
harm" to Bush in that there would be a "cloud"
over "the legitimacy of the election". As pointed
out by Ronald Dworkin (NY Review of Books
Vol 48, no. 1. p. 53-55): This

"bizarre claim
not only assumes that Bush would have lost the recount, but also that the public is not to
be trusted. Public knowledge that Gore would have won, if the recounts had been continued
and been accepted, would produce doubt about a Bush election only if the public disagreed
with the Courts judgement that the recount was illegal; and it is constitutionally
improper for the Court to keep truthful information from the public just because that
information might lead it to conclude that the election was a mistake or that the Court
was wrong."

Even more amazing was the further Federal Supreme Court adjudication that the
Florida Supreme Courts "clear intention of the voter"
standard for manual recounts violated the equal protection clause. Given this, it was
still possible for the Florida Supreme Court (i) to define a new standard (an essentially
legislative act, which the Federal Supreme Count now countenanced) and (ii) to have the
manual recount completed by 18th December, when the Electoral College voted.

However, the
Federal Supreme Court considered that the Florida legislature would want to take advantage
of the Federal "safe harbor" law that guarantees
immunity against the unlikely event of a Congressional challenge to the Florida result, if
the counting is completed by 12th December. Dworkin pointed out:

"It goes far beyond that safe [harbor] assumption to declare, as
the five [Federal] Supreme Court conservatives did, that the Florida legislature meant to
insist that the optional deadline be met at all costs, even
if it was necessary to ignore the principles of accuracy and fair treatment that underlie
the rest of the election code. That would be a bizarre interpretation of any states
election law  what legislature would wish to be understood as purchasing an immunity
it would almost certainly never need at the cost of sacrificing its basic commitments to
justice?"

Knowing
that there were time limits, the republicans took every opportunity to delay. The Federal
Supreme Court gave its final judgement only 2 hours
before the 12th December "safe harbor"
deadline expired, stating that the recount would have to be completed by that date. This
was, or course, impossible, so that the Presidency was handed to Bush. A dissenting
Supreme Court judge observed that the decision "can only lend
confidence to the most cynical appraisal of judges throughout the land."
Another dissenting judge considered this "self-inflicted wound may harm not just the court, but the
nation".

Naked power had won
over principle. "Justice" was revealed as just ice,
which melts when the political temperature rises. When Gore conceded, many sighed that
at least there had been a peaceful transition. But what is a "peaceful
transition"? Did they really imagine that there would be a military coup
in the USA?

Events of the
last few decades have shown that small groups, with an imaginary or real sense of
injustice and a little technical know-how, can disrupt peace in powerful ways. As antidote
to imaginary injustice we must bolster our mental health system(Click Here) . But the only antidote to real injustice
is to ensure that such injustice does not occur.

A political
transition that leads Ronald Dworkin, Professor of Law at New York University and of
Jurisprudence at University College, London, to write as quoted above, may turn out to be
far from peaceful. This lack of peace may not be confined to North America. A clear signal
has been sent to those who have power, but hesitate to use it. Winning is more important
than justice. The ends justify the means.

Monday 4th December. US Supreme Court
unanimously decides to vacate the Florida Supreme Court's decision,
asking for a better explanation of the ruling.

Friday 8th December. Florida Supreme
Court overturns a lower court decision and order a statewide recount of
ballots for which machines had registered no choice for president.

Saturday 9th December. Justices accept
Bush appeal and, by 5-4 vote, also grant the Bush request to stop the
recount in the meantime.

Sunday 10th December. Both sides file
briefs.

Monday 11th December. Cases are argued
before the US Supreme Court.

Tuesday 12th December. The US Supreme
Court rules, 5-4, that the recount as structured by the Florida Supreme
Court is unconstitutional and there is no time to fix it.

Wednesday 13th December. Gore concedes.

Legitimacy of the President?

In the final hours of his administration the
out-going President took an important step to improve the legitimacy of Bush. TheNY Times
declared on 24th Jan:

"Bill Clinton's last-minute pardon of Marc Rich,
the shadowy commodities trader who fled to Switzerland in 1983 to avoid American justice,
was a shocking abuse of presidential power and a reminder of why George W. Bush's vow to
restore integrity to the Oval Office resonates with millions of Americans who otherwise
disagree with the new president's politics."

Casualties: First Justice,
then Truth?

In
January 2001 The New York Times,
The Washington Post, The
Wall Street Journal, Associated
Press, Newsweek,
CNNand
several other news organizations commissioned Chicago's National
Opinion Research Center to conduct a comprehensive examination of
the 180,000 ballots not officially counted in Florida. It seemed
that the press was fulfilling its constitutional responsibility to
search out the truth.

Weeks turned into months. It took until August 2001 to complete the
survey. Then, on September 11th came a terrorist attack on the World
Trade Center in New York, and the Pentagon in Washington. Shortly
thereafter, cases of anthrax were reported in individuals who
received letters in the post containing a strange powder. The USA
was placed on a war footing.

On October 12th the Globe
& Mail
of Toronto (John Ibbitson) reported that "A
consortium of major U.S. news organizations had decided unanimously
not to analyze and report the results ... of the audit they
commissioned to identify which presidential candidate received the
most votes in Florida ...".
The following day a lead editorial stated:

"Executives
of the five major U.S. television networks have met and
decided, on the advice of the U.S. government, that there
are some things it would be best for the American people not
to know. This is a startling act of collective
self-censorship. ... The participants say that, given the
dramatic shift in priorities since Sept. 11, they have
neither the staff nor the space to pursue a stale-dated
story.

Come again? The issue is who would have won the U.S.
election if the choices of 180,000 voters had been
respected; the story has major implications for American
Democracy and the U.S. Supreme Court's intervention in the
vote. Even with a war to cover, that's a tale that needs to
be told.

It is hard not to see this as a further subordination of
news judgement to the desire not to rock the government's
boat at a perilous time. Once again, journalistic
independence is the loser."

From
all this it is hard not to suspect that, just as the real experts who might
have given advice on bioterrorism were sent "off fishin" because of the
way our health research peer-review system works, so (?)President Al Gore
(and his probable Secretary of State, Richard Holbrooke) were sent "off fishin"
because of the way the US electorial system works.

At times which demand
the very best of the very best, we should know if our world is in the hands of
Governor George Bush or President George Bush? He states that, while being
cautious, US citizens should get on with their lives and show the terrorists
that they cannot succeed. However, "business as usual"
requires that the press be unshacked.

Donald Forsdyke, 14th October 2001

On
12th November, the press were unshackled. Yes, if all the Florida votes had been
counted Gore would have won by from 42 to 171 votes. However, the headlines did
not reveal this and one had to dig deep to find the truth. Gore's requests for
limited recounts had been rejected, so it showed good judgment that he had
requested, but not pressed for, a state-wide recount. If the limited recount
proposal were rejected than it is certain that the state-wide recount
would also have been rejected.

It turned out that, if only the limited recounts had been performed, then Bush
would have maintained a slight lead. But that detracted from the real issue. Governor
Bush was now in charge, for better or for worse. The most valid question was, who
got the most votes in Florida? The result, albeit through a "photo-finish", was
President Gore. There was much mumbling about the result being statistically
insignificant. Well, so is the result of a photo-finish in the 100 metres dash.
Yet, to the winner we accord the gold. Political contests are won by those who
get a nose ahead. Statistics are irrelevant.